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Cochran v. Baldauf

United States District Court, S.D. Ohio, Eastern Division

June 6, 2019

GIANNA COCHRAN, Petitioner,
v.
TERI BALDAUF[1], Warden, Ohio Reformatory for Women, Respondent.

          George C. Smith District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is a habeas corpus case brought by petitioner Gianna Cochran with the assistance of counsel. It is before the Court for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4), the Return of Writ (ECF No. 5), and Petitioner's Traverse (ECF No. 10).

         The Magistrate Judge reference in this case has recently been transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF No. 11).

         Litigation History

          On April 26, 2010, the Franklin County grand jury indicted Petitioner on eighteen counts of endangering children in violation of Ohio Revised Code § 2919.22. She waived jury trial and tried the case to a judge who found her guilty on twelve counts and not guilty on the remaining six. The judge sentenced her to five years' imprisonment on each of the felony counts and six months' imprisonment on each of the misdemeanor counts, with the felony time to be served consecutively and the misdemeanor time concurrently. Thereafter the case generated a complex history which is recited at length in the Return of Writ and will be adverted to here only as necessary.

         After the conclusion of state court proceedings, Cochran filed her Petition for Writ of Habeas Corpus in this Court on October 25, 2018. Respondent concedes the filing is timely.

         Petitioner pleads the following grounds for relief:

Ground One: The Petitioner was denied due process when she was convicted without sufficient evidence to support said convictions.
Supporting Facts: The state failed to presented [sic] sufficient evidence to support the 9 convictions to Child Endangering.
Ground Two: Petitioner was deprived of her 5th and 14thAmendment rights when the trial court violated the Sentencing Package doctrine.
Supporting Facts: The trial court violated Due Process when it intentionally imposed a 25-year sentence as part of a “package” in violation of the Sentencing-Package doctrine.
Ground Three: Petitioner was deprived [of] effective assistance of counsel when counsel failed to present exculpatory evidence.
Supporting Facts: Trial counsel failed to present evidence that would have made a difference in the conviction.

(Petition, ECF No. 1, PageID 6, 8, 9.)

         Analysis

         Ground One: Insufficient Evidence

         In her First Ground for Relief, Ms. Cochran claims she was convicted on constitutionally insufficient evidence.

         An allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St.3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, 397 U.S. at 361. A sufficiency challenge should be assessed against the elements of the crime, not against the elements set forth in an erroneous jury instruction. Musacchio v. United States, 577 U.S.__, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016).

         In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus case, deference should be given to the trier-of-fact's verdict under Jackson and then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, "it is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1');">565 U.S. 1, [2], 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U.S. [766], [773], 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651 (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam).

         Procedural Default?

         This claim was presented as Cochran's first assignment of error on direct appeal and overruled. State v. Cochran, 2012-Ohio-5899 (10th Dist. Dec. 13, 2012). Respondent claims this First Ground for Relief is procedurally defaulted because Cochran did not appeal from the adverse decision of the Tenth District Court of Appeals (“Tenth District”) to the Supreme Court of Ohio (Return, ECF No. 5, PageID 761). Cochran counters that she presented this claim in her Memorandum in Support of Jurisdiction in Ohio Supreme Court No. 2013-464 (Traverse, ECF No. 10, PageID 807).

         The record reflects that the Tenth District entered judgment on Cochran's direct appeal on December 13, 2012 (State Court Record, ECF No. 4, Ex. 13, PageID 134-35). Cochran moved for reconsideration by that court. Id. Ex. 14 at PageID 174, et seq. The Tenth District denied that motion on February 5, 2013. Id. Ex. 16 at PageID 186, et seq. Only after that did Cochran appeal to the Supreme Court of Ohio, and her Notice of Appeal makes it clear she is appealing from the February 5, 2013, decision on the motion to reconsider. Id. at Ex. 17 at PageID 193, et seq.

         In her Memorandum in Support of Jurisdiction, Cochran does raise her insufficiency of the evidence claim as Proposition of Law II. (State Court Record, ECF No. 4, Ex. 18 at PageID 196. In opposing jurisdiction, the State responded on the merits to Proposition II. Id. at Ex. 19 at PageID 227-29. However, the Supreme Court of Ohio accepted jurisdiction only on Proposition of Law I (Entry, State Court Record, ECF No. 4, PageID 232.)

         In the Return, Respondent acknowledges that the insufficiency claim was raised, but notes that it was not done in accordance with the Supreme Court Rules of Practice. Those Rules provide that filing a motion for reconsideration in the court of appeals tolls the time for appealing to the Ohio Supreme Court. Ohio S.Ct.Prac.R. 7.01(A)(5)(a). Once the court of appeals renders a decision on the motion for reconsideration, a litigant has the usual forty-five days to appeal and the Rule provides the papers that must be filed with that notice. Id. at 7.01(A)(5)(c). While Cochran's appeal to the Supreme Court of Ohio was timely, she did not include all the papers required by the just-cited rule. That is, she only indicated she was appealing from the February 2013 ruling, not the December 2012 ruling. (See Notice of Appeal, State Court Record, ECF No. 4, Ex. 17.)

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “[A]bsent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, ...


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